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Garcia-Martinez v. Barr
"We must therefore consider whether the crime New Jersey has labeled “assault with a deadly weapon” covers only conduct that is properly classified as a crime of moral turpitude, or if on the other hand it sweeps in factual scenarios that are akin to simple assault. If the latter is true, as Garcia-Martinez contends, his crime of conviction is not categorically one of moral turpitude. The Board found that there was no realistic probability that the New Jersey law could be applied to conduct outside the scope of the generic crime. It therefore concluded that Garcia-Martinez’s earlier conviction was for a crime involving moral turpitude. On Garcia-Martinez’s petition for review, we conclude that the Board committed several legal errors that may have affected its decision. We thus grant the petition and remand for further proceedings.
... There are several problems with the BIA’s resolution of Garcia-Martinez’s petition. First, the BIA has never defined what it considers a “deadly weapon” in the context of a crime involving moral turpitude. Second, the record is devoid of evidence that might support the BIA’s idea that Garcia-Martinez’s accomplices used any conventional weapon—a supposition that appears to have been central to the Board’s decision. Third, the BIA misconstrued Garcia-Martinez’s argument regarding the factual basis for his plea and decided his case based on an argument first raised outside of the adversarial process.
... [T]he Board did not explain why, given the abrupt way in which the IJ found factual ambiguity, it nevertheless upheld the IJ’s decision to rule against Garcia-Martinez without offering him the opportunity to respond. It appears to us that Garcia-Martinez has entered all the relevant Shepard documents into the record, and so the Board should be able to decide as a matter of law whether New Jersey’s assault with a deadly weapon statute is closer to generic simple assault, and thus not a crime of moral turpitude, or stays within the boundaries of generic assault with a deadly weapon, and thus reflects moral turpitude. On remand if the BIA is concerned about the completeness of Garcia-Martinez’s Shepard documents, it should explain that view and Garcia-Martinez should be given the opportunity to present any necessary additional materials. ... We GRANT the petition for review and REMAND the case to the Board of Immigration Appeals for further proceedings consistent with this opinion."
[Hats off to Davorin J. Odrcic!]